Citation Nr: 0632067
Decision Date: 10/16/06 Archive Date: 10/25/06
DOCKET NO. 04-41 056 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for a neck disorder.
2. Entitlement to an initial rating in excess of 10 percent
for lumbar spondylolisthesis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
C. Fetty, Counsel
INTRODUCTION
The veteran had honorable active service from August 1981 to
October 2003.
This appeal comes before the Board of Veterans' Appeals
(Board) from January and June 2004 rating decisions of the
Department of Veterans Affairs (VA) Regional Office (RO) in
North Little Rock, Arkansas. The January 2004 rating
decision granted service connection for lumbar
spondylolisthesis and assigned a 10 percent rating. The June
2004 rating decision granted service connection and a 10
percent rating for left lower extremity radiculopathy and
denied entitlement to service connection for a neck disorder.
The veteran testified at a November 2005 video-conference
hearing before the undersigned Veterans Law Judge; a copy of
the hearing transcript is associated with the claims file.
Entitlement to service connection for a neck disorder is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDINGS OF FACT
1. Lumbar spondylolisthesis is manifested by no more than 80
degrees of forward flexion, 20 degrees of backward extension,
30 degrees of lateral bending in each direction, and 30
degrees of rotation in each direction.
2. Lumbar spondylolisthesis produces additional functional
limitation due to weakness.
3. Radiculopathy causes sensory deficits in the right lower
extremity.
CONCLUSIONS OF LAW
1. The criteria for an initial 20 percent rating for lumbar
spondylolisthesis are met. 38 U.S.C.A. §§ 1155, 5103, 5103A,
5107 (West 2002 & Supp 2006); 38 C.F.R. §§ 3.321(b), 3.159,
4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5239
(2006).
2. The criteria for an initial 10 percent rating for right
lower extremity radiculopathy are met. 38 U.S.C.A. §§ 1155,
5103, 5103A, 5107 (West 2002
& Supp. 2006); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7,
4.10, 4.124a, Diagnostic Code 8520 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA must tell each claimant what evidence is needed to
substantiate a claim, what evidence the claimant is
responsible for obtaining and what evidence VA will undertake
to obtain. 38 U.S.C.A. § 5103(a). VA has also undertaken to
tell claimants to submit relevant evidence in their
possession. 38 C.F.R. § 3.159(b). VA must tell a claimant
the types of medical and lay evidence that the claimant could
submit that is relevant to establishing disability.
VA has notified the veteran of the information and evidence
needed to substantiate his claim for a higher initial rating.
VA provided notice letters in October 2003, March 2004, and
November 2004. These letters informed the veteran of what
evidence is needed to substantiate the claim, what evidence
he was responsible for obtaining, and what evidence VA would
undertake to obtain.
VA has met its duty to assist in obtaining any relevant
evidence available to substantiate the claim. VA examination
reports are associated with the claims files. All identified
evidence has been accounted for to the extent possible.
38 U.S.C.A. § 5103A (b)-(d); see also 38 C.F.R. § 3.159(c).
VA sent its first notice letter before the initial adverse
decision, as suggested in Pelegrini v. Principi, 18 Vet. App.
112, 119-20 (2004).
In Dingess v. Nicholson, 19 Vet. App. 473, the United States
Court of Appeals for Veterans Claims (Court) held that the VA
notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a service connection
claim. Those five elements include: 1) veteran status; 2)
existence of a disability; (3) a connection between the
veteran's service and the disability; 4) degree of
disability; and 5) effective date of the disability. The
Court held that upon receipt of an application for a service-
connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Additionally,
this must include notice that a disability rating and an
effective date for the award of benefits will be assigned if
service connection is awarded. In the present appeal,
because a 20 percent rating is granted for the lumbar spine
disability and a separate 10 percent rating is granted for
the right lower extremity, the RO will rectify any defect
with respect to the effective dates. Significantly, the
veteran retains the right to appeal the effective dates
assigned. Thus, no unfair prejudice will result from the
Board's handling of the matter at this time.
Rating the Lumbar Spine
In the case of Fenderson v. West, 12 Vet. App. 119 (1999),
the Court distinguished a claim for an increased rating from
a claim arising from disagreement with the initial rating
assigned after service connection was established. The Court
stressed that the difference between an original rating and
an increased rating is important with respect to the evidence
that may be used to determine whether the original rating was
erroneous. In subsequent analysis, the Court considered
medical and lay evidence of record at the time of the
original service connection application and all additional
evidence submitted since then. Accordingly, the Board will
carefully consider all evidence that pertains to the severity
of the lumbar spine disability throughout the appeal period.
Disability ratings are determined by comparing present
symptomatology with the criteria set forth in VA's Schedule
for Rating Disabilities (Rating Schedule), which is based on
average impairment in earning capacity. See 38 U.S.C.A.
§ 1155; 38 C.F.R. Part 4. When a question arises as to which
of two ratings apply under a particular diagnostic code, the
higher evaluation is assigned if the disability more closely
approximates the criteria for the higher rating; otherwise,
the lower rating will be assigned. 38 C.F.R. § 4.7. After
careful consideration of the evidence, any reasonable doubt
remaining is resolved in favor of the veteran. 38 C.F.R.
§ 4.3. The veteran's entire history is reviewed when making
disability evaluations. 38 C.F.R. § 4.1; Schafrath v.
Derwinski, 1 Vet. App. 589, 592 (1995).
VA regulations require that disability evaluations be based
upon examination reports that take into account the whole
history, so as to reflect all elements of disability. The
medical as well as industrial history is to be considered,
and a full description of the effects of the disability upon
ordinary activity is also required. Functional impairment is
based on lack of usefulness and may be due to pain, supported
by adequate pathology and evidenced by visible behavior
during motion. Many factors are for consideration in
evaluating disabilities of the musculoskeletal system and
these include pain, weakness, limitation of motion, and
atrophy. Painful motion with joint or periarticular
pathology producing disability warrants at least a minimum
compensable rating for the joint. 38 C.F.R. §§ 4.1, 4.2,
4.10, 4.40, 4.45.
For disabilities evaluated on the basis of limitation of
motion, VA is required to apply the provisions of 38 C.F.R.
§§ 4.40, 4.45, pertaining to functional impairment. The
Court has instructed that in applying these regulations VA
should obtain examinations in which the examiner determined
whether the disability was manifested by weakened movement,
excess fatigability, or incoordination. Such inquiry is not
to be limited to muscles or nerves. These determinations
are, if feasible, be expressed in terms of the degree of
additional range-of-motion loss due to any weakened movement,
excess fatigability, or incoordination. DeLuca v. Brown,
8 Vet. App. 202 (1995).
The RO assigned an initial 10 percent rating for lumbar
spondylolisthesis with degenerative changes and chronic pain
effective from November 1, 2003, under Diagnostic Code 5239.
The RO also assigned a separate initial 10 percent rating for
mild left radiculopathy of L-5 under Diagnostic Code 8620.
The Board will address the lumbar spine rating first.
Intervertebral disc syndrome (preoperatively or
postoperatively) is evaluated either on the total duration of
incapacitating episodes over the past 12 months or by
combining under 38 C.F.R. § 4.25 separate evaluations of its
chronic orthopedic and neurological manifestations along with
evaluations for all other disabilities, whichever method
results in the higher evaluation. An incapacitating attack
is defined as a period of physician prescribed bed rest.
With incapacitating episodes having a total duration of at
least one week, but less than 2 weeks, during the past 12
months a 10 percent rating will be assigned. With
incapacitating episodes having a total duration of at least
two weeks but less than four weeks during the past 12 months,
a 20 percent rating is warranted. Incapacitating episodes
having a total duration of at least four weeks but less than
six weeks during the past 12 months warrant a 40 percent
rating. 38 C.F.R. § 4.71a.
VA regulations also provide for an alternate method of rating
the low back disability under criteria contained in the
General Rating Formula for Diseases and Injuries of the Spine
as follows:
(For diagnostic codes 5235 to 5243 unless
5243 is evaluated under the Formula for
Rating Intervertebral Disc Syndrome Based
on Incapacitating Episodes): With or
without symptoms such as pain (whether or
not it radiates), stiffness, or aching in
the area of the spine affected by
residuals of injury or disease. A 100
percent schedular evaluation is assigned
if there is unfavorable ankylosis of the
entire spine. A 50 percent rating is
assigned if there is unfavorable
ankylosis of the entire thoracolumbar
spine. A 40 percent rating is assigned
if there is unfavorable ankylosis of the
entire cervical spine; or, forward
flexion of the thoracolumbar spine 30
degrees or less; or, favorable ankylosis
of the entire thoracolumbar spine.
A 20 percent rating is assigned for
forward flexion of the cervical spine
greater than 30 degrees but not greater
than 60 degrees; or, the combined range
of motion of the thoracolumbar spine not
greater than 120 degrees; or, the
combined range of motion of the cervical
spine not greater than 170 degrees; or,
muscle spasm or guarding severe enough to
result in an abnormal gait or abnormal
spinal contour such as scoliosis, reverse
lordosis, or abnormal kyphosis.
Finally, a 10 percent rating is assigned
for forward flexion of the thoracolumbar
spine greater than 60 degrees but not
greater than 85 degrees; or, forward
flexion of the cervical spine greater
than 30 degrees but not greater than 40
degrees; or, the combined range of motion
of the thoracolumbar spine greater than
120 degrees, but not greater than 235
degrees; or, the combined range of motion
of the cervical spine greater than 170
degrees but not greater than 335 degrees;
or, muscle spasm, guarding, or localized
tenderness not resulting in abnormal gait
or abnormal spinal contour; or, vertebral
body fracture with loss of 50 percent or
more of the height.
Note (1): Evaluate any associated
objective neurologic abnormalities,
including, but not limited to, bowel or
bladder impairment, separately, under an
appropriate diagnostic code.
Note (2): (See also Plate V.) For VA
compensation purposes, normal forward
flexion of the cervical spine is zero to
45 degrees, extension is zero to 45
degrees, left and right lateral flexion
are zero to 45 degrees, and left and
right lateral rotation are zero to 80
degrees. Normal forward flexion of the
thoracolumbar spine is zero to 90
degrees, extension is zero to 30 degrees,
left and right lateral flexion are zero
to 30 degrees, and left and right lateral
rotation are zero to 30 degrees. The
combined range of motion refers to the
sum of the range of forward flexion,
extension, left and right lateral
flexion, and left and right rotation. The
normal combined range of motion of the
cervical spine is 340 degrees and of the
thoracolumbar spine is 240 degrees. The
normal ranges of motion for each
component of spinal motion provided in
this note are the maximum that can be
used for calculation of the combined
range of motion.
Note (3): In exceptional cases, an
examiner may state that because of age,
body habitus, neurologic disease, or
other factors not the result of disease
or injury of the spine, the range of
motion of the spine in a particular
individual should be considered normal
for that individual, even though it does
not conform to the normal range of motion
stated in Note (2). Provided that the
examiner supplies an explanation, the
examiner's assessment that the range of
motion is normal for that individual will
be accepted.
Note (4): Round each range of motion
measurement to the nearest five degrees.
Note (5): For VA compensation purposes,
unfavorable ankylosis is a condition in
which the entire cervical spine, the
entire thoracolumbar spine, or the entire
spine is fixed in flexion or extension,
and the ankylosis results in one or more
of the following: difficulty walking
because of a limited line of vision;
restricted opening of the mouth and
chewing; breathing limited to
diaphragmatic respiration;
gastrointestinal symptoms due to pressure
of the costal margin on the abdomen;
dyspnea or dysphagia; atlantoaxial or
cervical subluxation or dislocation; or
neurologic symptoms due to nerve root
stretching. Fixation of a spinal segment
in neutral position (zero degrees) always
represents favorable ankylosis.
Note (6): Separately evaluate disability
of the thoracolumbar and cervical spine
segments, except when there is
unfavorable ankylosis of both segments,
which will be rated as a single
disability. Diagnostic Code 5235,
Vertebral fracture or dislocation;
Diagnostic Code 5236, Sacroiliac injury
and weakness; Diagnostic Code 5237
Lumbosacral or cervical strain;
Diagnostic Code 5238 Spinal stenosis;
Diagnostic Code 5239 Spondylolisthesis or
segmental instability; Diagnostic Code
5240 Ankylosing spondylitis; Diagnostic
Code 5241 Spinal fusion; Diagnostic Code
5242 Degenerative arthritis of the spine
(see also diagnostic code 5003);
Diagnostic Code 5243 Intervertebral disc
syndrome.
38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243.
The service-connected lumbar spine disability has been
manifested throughout the appeal period by signs and symptoms
such as 80 degrees of forward flexion, 20 degrees of backward
extension, 30 degrees of lateral bending in each direction,
and 30 degrees of rotation in each direction, which represent
the pain-free ranges of motion in each plane. There was
tenderness in the low back area also. Additional functional
limitation exists due to limited ability to stand for long
periods and limited ability to lift heavy weight. No
incapacitating episode of intervertebral disc syndrome has
been shown.
Comparing these manifestations to the rating criteria, the
requirements of a 10 percent schedular rating are met under
Diagnostic Code 5239; however, additional functional
impairment limits the veteran's endurance for standing and
lifting and results in several days per year of time lost
from work. This additional functional impairment must also
be rated. In this regard, the veteran testified that
symptomatology attributable to his back disability includes
numbness in lower extremities. He also complained of ongoing
chronic pain in his back. Resolving any remaining doubt in
favor of the veteran, the Board finds that the overall
functional impairment more nearly approximates the criteria
for a 20 percent rating under Diagnostic Code 5239.
38 C.F.R. § 4.7.
Turning to separate ratings for radiculopathy associated with
the lumbar spine, the question is whether there is a basis
for a rating higher than 10 percent. A November 2003 VA
neurological compensation examination report notes bilateral
positive straight leg raising test and bilateral lower
extremity diminished sensation. An April 2004 VA orthopedic
examiner noted that low back pain radiated to both lower
extremities. Although a December 2003 electromyography (EMG)
report found only left lower extremity radiculopathy, the
right lower extremity was not tested. The RO has granted a
separate neurologic rating only for mild left radiculopathy
under Diagnostic Code 8620.
Under Diagnostic Code 8520, a 10 percent evaluation is
warranted for mild incomplete paralysis of the sciatic nerve.
A 20 percent evaluation requires moderate incomplete
paralysis. A 40 percent evaluation requires moderately
severe incomplete paralysis. A 60 percent evaluation
requires severe incomplete paralysis with marked muscular
atrophy. An 80 percent evaluation requires complete
paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520.
The term "incomplete paralysis" indicates a degree of lost or
impaired function that is substantially less than that which
is described in the criteria for an evaluation for complete
paralysis of this nerve, whether the less than total
paralysis is due to the varied level of the nerve lesion or
to partial nerve regeneration. When there is complete
paralysis, the foot dangles and drops, no active movement of
the muscles below the knee is possible, and flexion of the
knee is weakened or very rarely lost. 38 C.F.R. § 4.124a.
Where the nerve impairment is, as in this case, wholly
sensory, the disability is to be evaluated as mild or, at
most, moderate. The ratings for the peripheral nerves are
for unilateral involvement; when bilateral, combine with the
application of the bilateral factor. 38 C.F.R. § 4.124a,
Note preceding Diagnostic Code 8510.
Accordingly, no more than a 10 percent rating is warranted
for radiculopathy attributable to lumbar spondylolisthesis of
each lower extremity. Thus, the 10 percent rating already
assigned to the left lower extremity is correct; however,
right lower extremity radiculopathy also more nearly
approximates the criteria for a 10 percent rating under
Diagnostic Code 8520. A 10 percent rating is therefore
granted for right lower extremity radiculopathy. 38 C.F.R.
§ 4.7.
Extraschedular Consideration
The provisions of 38 C.F.R. § 3.321(b) provide that where the
disability picture is so exceptional or unusual that the
normal provisions of the Rating Schedule would not adequately
compensate the veteran for his service-connected disability,
an extra-schedular evaluation will be assigned.
Where the veteran has alleged or asserted that the schedular
rating is inadequate or where the evidence shows exceptional
or unusual circumstances, the Board must specifically
adjudicate the issue of whether an extraschedular rating is
appropriate, and if there is enough such evidence, the Board
must direct that the matter be referred to the VA Central
Office for consideration. If the matter is not referred, the
Board must provide adequate reasons and bases for its
decision to not so refer it. Colayong v. West 12 Vet.
App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227
(1995).
In this case, the disability has not been shown, or alleged,
to cause such difficulties as marked interference with
employment or to warrant frequent periods of hospitalization
or to otherwise render impractical the application of the
regular schedular standards. On the most recent examination
it was specifically noted that the back disability caused two
or three days of lost work in the recent six months. In the
absence of evidence of such factors, the Board is not
required to remand this matter to the RO for the procedural
actions outlined in 38 C.F.R. § 3.321(b) (1). See Bagwell v.
Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet.
App. 88, 96 (1996); Shipwash, 8 Vet. App. at 227. See also
VAOPGCPREC. 6-96.
ORDER
An initial 20 percent rating for lumbar spondylolisthesis is
granted for the entire appeal period, subject to the laws and
regulations governing the payment of monetary benefits.
A separate 10 percent rating for right lower extremity
sensory impairment is granted for the entire appeal period,
subject to the laws and regulations governing the payment of
monetary benefits.
REMAND
VA's duty to assist includes providing a medical examination
or obtaining a medical opinion where such is necessary to
make a decision on the claim. 38 U.S.C. § 5103A (d) (West
2002 & Supp. 2006).
The service medical records do not reflect a neck-related
complaint or neck injury. In November 2003, a VA general
medical examiner noted the veteran's complaint of
intermittent numbness of the fingers and a VA peripheral
nerves examiner noted slightly decreased (1+ to 2+) deep
tendon reflexes in the upper extremities. A December 2003 VA
electromyography (EMG) study found no C-5 to T1
radiculopathy.
In January 2004, the veteran reported that he was in pain
from his feet to the back of his neck with numbness in the
left shoulder and the neck. He submitted a June 2004 private
magnetic resonance imaging (MRI) scan that shows central disc
protrusion at C3-4 and small right para-central disc
protrusion at C4-5.
Because the neck-related symptoms arose so soon after the
veteran's retirement from active service, the question is
whether any current neck disorder began during active
service, or, if arthritis is shown, whether it began prior to
October 31, 2004 (one year after the veteran's retirement).
Accordingly, this case is remanded to the AMC for the
following action:
1. VA must review the entire file and
ensure that all notification and
development necessary to comply with 38
U.S.C.A. §§ 5103(a) and 5103A (West 2002
& Supp. 2006) and 38 C.F.R. § 3.159
(2006)), as well as VAOPGCPREC 7-2004, is
fully satisfied. In particular, VA must
send the veteran a corrective notice,
that includes: (1) an explanation as to
the information or evidence needed to
establish a disability rating and an
effective date, if service connection is
granted, as outlined by the Court in
Dingess v. Nicholson, 19 Vet. App. 473
(2006) and (2) requests or tells the
veteran to provide any evidence in his
possession that pertains to hisservice
connection claim. The claims file must
include documentation that there has been
compliance with the VA's duties to notify
and assist a claimant as specifically
affecting the issue on appeal.
2. After the development requested above
has been completed to the extent
possible, the AMC should make
arrangements for an orthopedic
examination by an appropriate specialist.
The physician should perform any tests or
studies deemed necessary for an accurate
assessment. The examination report
should include a detailed account of all
pathology found to be present. The
physician is asked to review the
pertinent evidence in the claims file
with particular attention to a June 2004
private MRI report and answer the
following:
I. What, if any, is the diagnosis
for the current neck disorder?
II. Is it at least as likely as not
(50 percent or greater probability)
that any current neck disorder had
its onset in service?
III. If arthritis of the cervical
spine is shown and if the answer to
question II above was "no", is it
at least as likely as not (50
percent or greater probability) that
arthritis began within one year
after October 31, 2003?
IV. The physician should offer a
rationale for any conclusion in a
legible report. If any question
cannot be answered, the physician
should state the reason.
3. After the development requested above
has been completed to the extent
possible, the AMC should readjudicate the
claim for service connection for a neck
disorder. If the benefit sought remains
denied, the veteran and his
representative should be furnished a
supplemental statement of the case and
given opportunity to respond.
The purposes of this remand are to comply with due process of
law and to further develop the veteran's claim. No action by
the veteran is required until he receives further notice;
however, the veteran is advised that failure to cooperate by
reporting for examination may result in the denial of his
claim. 38 C.F.R. § 3.655 (2006). The Board intimates no
opinion, either legal or factual, as to the ultimate
disposition warranted in this case, pending completion of the
above. The appellant and his representative have the right
to submit additional evidence and argument on the matter or
matters the Board has remanded. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the Court for additional development
or other appropriate action must be handled in an expeditious
manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs